Bush: $250,000 Cap Needed For Medical Malpractice Suits

CNSNEWS.com ^ | 1/16/03 | Christine Hall

[kattracks]

1st Add: Includes comments from Alliance of American Insurers)

(CNSNews.com) - President Bush on Thursday called for Congress to pass a law limiting non-economic, punitive damages in medical malpractice suits to $250,000.

"Our medical liability system is broken," the president told a Scranton, Pa. audience.

"A broken system like that first and foremost hurts the patients and the people of America," said Bush, because "junk lawsuits" drive up malpractice insurance premiums and drive innocent doctors out of town, according to the president.

Non-economic damages include jury awards for "pain and suffering," while punitive damages are imposed as a way of punishing a defendant. Defendants can be required to pay non-economic and punitive damages on top of damages for loss of pay, medical expenses and other costs connected to a plaintiff's injury.

\li30\sb30 President Bush's plan would cap recoveries for non-economic damages; reserve punitive damages for cases where they are justified; provide for payments of judgments over time rather than in a single, lump sum; ensure that old cases could not be brought years after an event; reduce the amount doctors must pay if a plaintiff has received other payments from an insurer to compensate for their losses; and would provide that defendants pay judgments in proportion to their fault.

In the American legal system, laws governing civil disputes are usually decided by state legislatures, but Bush said this time the federal government needs to intervene.

"It is a national problem that needs a national solution," said Bush, because the direct cost of malpractice insurance and defensive medicine raises health care costs paid by the federal government though Medicare, Medicaid, veterans' health care and health care afforded to government employees.

The House passed a medical malpractice bill last year but the measure stalled in the Senate. Bush acknowledged that the Senate remains the major stumbling block to reform and urged citizens to lobby their home state senators on the need for damage caps.

The insurance industry is pushing Congress to pass legislation this year.
Rodger S. Lawson, president of the Alliance of American Insurers, urged Congress to enact medical malpractice liability reforms to reduce the number and size of malpractice claims.

\li30\sb30 Lawson called the president's plan a "solid step forward for the American health care system and the American economy."

"Reforming the medical malpractice system is critical, because the rising costs of health care are borne by numerous insurance lines: workers' compensation, automobile, homeowners, etc. All lines share some of the escalating costs," Lawson said. More to Follow...

See Earlier Stories:

New Year No Fun For Pennsylvania Doctors

Study: Fear of Litigation Has 'Stunning Impact' on Doctors, Health Care

[meyer]

The proposed cap is for non-economic damages.

That needs repeating as often as possible. Watch for the leftists, Nader's "Citizen's Action", and the like to try to spin this every which way they can to make it look like the right to sue is being removed. It isn't.

[meyer]

...my father's insurance would not pay for any of the tests since my father was terminal and "was going to die soon anyway."

This is a sad, but realistic byproduct of frivolous tort actions. The insurer doesn't want the exposure to lawsuits that a risky operation would give them, particularly when the long-term outlook is poor. I am sorry that this has happened.

[meyer]

But when the doctors trash your health, suddenly they, the insurance companies and George Bush all agree that no physical affliction can diminish your hapiness to a degree worth more than $250,000.

An okay house. Or really nice car. Perhaps some good furniture and mediocre art for your house.

Hey, sorry about the wheelchair -- but don't worry, you'll get used to it.

So, what you're saying is that money can buy happiness, particularly when it comes out of the pockets of the rest of America. I say bull.

And if you are going to count the quantity of happiness (as if it is quantifiable), you ought to count the happiness level of the vast majority of Americans that aren't victims, but are nevertheless paying heavily for health care because a band of self-ritious lawyers wants to get rich.

[meyer]

You are so right. ~ And working Americans should be shown how they pay for these legal costs twice...once at the time of care...and again through higher insurance premiums.

It would be helpful if doctors disclosed the portion of your bill, even if covered, that went towards malpractice insurance. I think the public is under the impression that it is a miniscule amount.

As this national debate unfolds, we must remember that the proposed caps are for non-economic awards (which I read as the "pain and suffering" and physician "punishment" part of a settlement.)

Exactly - "pain and suffering" isn't quantifiable, and much of what is claimed is BS anyways.

Additional settlements for articulated economic loss are available on top of this cap.

True.

[meyer]

I sideswiped another car a few years ago. It was in no way a head-on or side collision. The guy parked his car, and he and his wife got out, and she started jumping up and down like a wild woman made because of what I had done. He calmly whispered something in her ear, and she got back into the car. He was so sweet while exchanaging insurance information. Within a week my insurance agent tells me they were doctor shopping. They ended up settling for $50,000, and the scratch on my car wasn't even worth fixing. Really.

Oh, I've heard of that happening very often. If you know anybody that is a fireman/ambulance driver, you'll know exactly whay trial lawyers are called "ambulance chasers". Often, they seem OK until they find out that the other driver has insurance - then they start holding the neck and acting 'hurt'.

People think they are entitled to something beyond simple monetary damages, even when it involves only a minor fender-bender. They think that if they get it from an insurer instead of directly from the other driver, that makes it OK. Its a BS game, and needs to be addressed. This medical malpractice game is the tip of the iceberg.

[meyer]

Punitive damages are punishment damages for a doctor's negligence, if proven in court to the satisfaction of a jury. If a surgeon amputates your healthy leg rather than the diseased one, or removes your healthy lung, rather than the cancerous one, is $250,000 enough of a punishment towards a negligent surgeon? I don't support juries rewarding people for their injuries, but doctors don't police themselves. They are sent right back out to practice negligent medicine again. Allow the public access to a data base so we can determine doctors' lawsuit histories, so we can assess their competence. When licenses are permanently revoked for negligence, *then* cap the punitive damages.

The problem with divvying out punishment with a jury in civil court is in the way civil court operates. If a crime is committed in which one must go through criminal court, the jury must make an unanamous decision based on the reasonable doubt theory. In civil court, there need only be a simple majority and it need only be based on a preponderance of evidence.

There are a couple of problems with that. One, statistically, it is very possible to find a jury that will provide a guilty verdict without even hearing evidence. In other words, the odds of finding a simple majority out of 12 jurors is high enough to find guilt in a trial without establishing guilt. Thus, a doctor's perceived guilt is subject to the whims of but a few individuals.

Second, the jury selection process is flawed - lawyers from both sides try to swing the jury in their own favor. And this might seem fair, except that all it takes is one extreme, frivilous lawsuit to extract a ton of money out of the system. So, all a lawyer needs it to win 1 out of 100 or 1 out of 1000 attempts and he's rich, his client is rich, and everybody goes home happy - except the doctor, his insurer, and all the folks that buy insurance.

[meyer]

Judges can reduce punitive damages if they are deemed excessive, no? Then there's always the appeals process.

That's assuming that the judge wants to. Roughly 50% of our judges are leftists. Virtually all of them are lawyers (as if that isn't a conflict of interest).

Weeding out the bad physicians by revoking their licenses will reduce the number of lawsuits that get to a jury. I don't support punishing the victims, like you left with a cancerous lung, or facing another amputation, leaving you a paraplegic, and letting the doc off with $250,000 in punitive damages.

Punishment belongs in criminal court, not civil court. I may agree that doctors ought to tighten the standards, but I'd have to see those standards first.

Medicine isn't exact - there's risky procedures and some even provide less than 50% success rate. Should the non-successful half of those operations exact huge punitive awards? Should they stop performing that procedure and thus let the other 50% die?

I think you'd see an increase of men and women in medical schools too, not so fearful of mm lawsuits. I don't believe all the blame should be placed at the feet of attorneys. Doctors should police themselves, but they have lobbyists, too, unfortunately.

I think you'll see more people in medical school when the rewards of the career exceed the risks. Would you want to be a doctor knowing that one slip could put you out of work and virtually unemployable for life?

I don't know if this is being applied to wrongful death cases too, but what would you think about O J Simpson getting off with $250,000 in punitive damages for killing Nicole Simpson and Ron Goldman? If the attempt to limit punitive damages in wrongful death cases isn't being promoted now, it soon will be.

I think he was guilty as hell, but the criminal courts found him not guilty. Supposing that he wasn't (or suppose it was a different case, say the subway vigilante) - should the families of the deceased be able to extract nearly his entire worth based on the whims of a simple majority?

[ZULU]

This is a good idea, but any limits in malpractise suits MUST be tied to corresponding reductions in malpractise insurance, or the Insurance companies - as big a nest of vipers and bloodsuckers as attorneys - will merely increase their profit margins by these measures.

[luckystarmom]

You have to prove that they have earnings. With a child you cannot prove that they have lost wages unless they are really disabled.

My daughter is not in a wheel-chair. She can run, walk, and take care of herself. Her IQ is 90 (low average). (Her brother is over 130, and I think her identical twin sister will be even higher.) An IQ of 90 means that she is not "retarded". They just can't prove what her potential is. She has severe speech problems. The left side of her body is weaker than her right side. Some of her reflexes are not normal. She has motor planning problems, so she can't do finger plays, dance complicated moves, etc.

That's the problem. Since a lawyer can't prove she won't go to college and won't be able to get a good job, we are left with punitive damages. The lawyer can only take 1/3 of the amount of the damages as their fee, and this would be under $100,000. The cost for taking the medical malpractice lawsuit to trial would be around $100,000. Medical malpractice lawsuits are also tricky to prove. Therefore, there is not much benefit for all the risk involved. Therefore, no case.

It sucks. I'm in California where is law is already is in affect, and it is definitely hurting people that don't need to be hurt.

[meyer]

Cute. Wrong, but Cute.

[meyer]

Higher than mine. I give him credit for getting NAFTA and GATT in place, but I can't think of anything else.

Well, he signed welfare reform. But, I suspect that if I crunched the numbers, I'd have to drop him down a few points.

[wordsofearnest]

Remember the old saw, "One lawyer in a small town will starve to death, two in a small town will each make a good living". Too many talented young people go into law instead of something productive. Engineers, entrepreneurs, scientests and the like built this country not attorneys.

[Myrddin]

Thanks for the link. Rand certainly predicted the consequences in an entertaining fashion.

[top of the world ma]

"In civil court, there need only be a simple majority and it need only be based on a preponderance of evidence."

That's the way the system works in civil trials.

"There are a couple of problems with that. One, statistically, it is very possible to find a jury that will provide a guilty verdict without even hearing evidence. In other words, the odds of finding a simple majority out of 12 jurors is high enough to find guilt in a trial without establishing guilt. Thus, a doctor's perceived guilt is subject to the whims of but a few individuals."

Cite one case, just one, where a jury has awarded a judgement without ever hearing any evidence. Attorneys on either side may instigate settlement talks with the other side before evidence is heard, or during trial, or during jury deliberations, but juries don't award judgements before hearing any evidence. Civil verdicts aren't rendered on just a "simple majority." It requires 10 out of 12 jurors or 6 out of 8, depending on the number of jurors empaneled before trial.

"Second, the jury selection process is flawed - lawyers from both sides try to swing the jury in their own favor. And this might seem fair, except that all it takes is one extreme, frivilous lawsuit to extract a ton of money out of the system. So, all a lawyer needs it to win 1 out of 100 or 1 out of 1000 attempts and he's rich, his client is rich, and everybody goes home happy - except the doctor, his insurer, and all the folks that buy insurance."

Frivilous lawsuits should be thrown out by judges. If they're not, is that the fault of the attorney? Juries who "reward" plaintiffs for their injuries are the fault of the attorneys? The jury may make an attorney rich with his 40% of the judgement; the plaintiff may be awarded too much compensation for his injury; the doctor is punished for his negligence; his insurer is prepared to pay out policy limits thereby raising mm premiums on the rest of the doctors. Get rid of the quacks and the premiums will fall, but doctors are loathe to weed out their own. They deserve some of the responsibility for the high mm premiums. And look to juries who award the excessive judgements.

If you're ever grieveously injured by a negligent doctor and a jury awards you too much money, tell the judge "nah, I don't want it, it's too much money, the system is flawed" and absent yourself from the courtroom. Or never consult with an attorney about restitution wrt your injuries resulting from a doctor's negligence. Do your part to change the way the system works.

[meyer]

That's the way the system works in civil trials.

And that is part of the problem. Punishment under the law is held to a higher standard than punishment dealt by a sometimes misguided mob.

Cite one case, just one, where a jury has awarded a judgement without ever hearing any evidence. Attorneys on either side may instigate settlement talks with the other side before evidence is heard, or during trial, or during jury deliberations, but juries don't award judgements before hearing any evidence. Civil verdicts aren't rendered on just a "simple majority." It requires 10 out of 12 jurors or 6 out of 8, depending on the number of jurors empaneled before trial.

There needn't be such a citation - just the fact that lawyers go through some pretty intense gyrations to hand-pick jurors indicates that they want people of, say, a "certain opinion". I didn't intend to indicate that juries have ruled without evidence; I only meant to say that statistical permutations shows that such juries occur given the probabilities of finding majorities of like-minded people in small samples. This would be particularly true when the jury selection process isn't entirely random.

As for the number of jurors required for a verdict, I suspect that depends on jurisdiction.

Frivilous lawsuits should be thrown out by judges. If they're not, is that the fault of the attorney? Juries who "reward" plaintiffs for their injuries are the fault of the attorneys? The jury may make an attorney rich with his 40% of the judgement; the plaintiff may be awarded too much compensation for his injury; the doctor is punished for his negligence; his insurer is prepared to pay out policy limits thereby raising mm premiums on the rest of the doctors. Get rid of the quacks and the premiums will fall, but doctors are loathe to weed out their own. They deserve some of the responsibility for the high mm premiums. And look to juries who award the excessive judgements.

Well, there's a lot in that paragraph, but I'll respond. Yes, the Attorney is partly responsible for frivilous lawsuits when they occur. Why? Because when one is an accessory to theft (which a frivilous judgement really is), one is guilty. This is true whether the theft is legal or not. I also agree that a judge should throw out such cases, but then it is apparent that there is often a conflict of interest when the judge is himself an attorney. Again, it only takes a few big cases to set precident - look at tobacco. And guns and fast-foods are next. Medical malpractice isn't but part of the problem. And "throwing out the quacks" won't work when many in the legal world keeps redefining "quack" in a downward fashion in order to enrich themselves.

If you're ever grieveously injured by a negligent doctor and a jury awards you too much money, tell the judge "nah, I don't want it, it's too much money, the system is flawed" and absent yourself from the courtroom. Or never consult with an attorney about restitution wrt your injuries resulting from a doctor's negligence. Do your part to change the way the system works.

Firstly, I'm not one to sue for "punative" damages - that doesn't belong in civil court. Economic damages are what is required to make a person "whole" which is the entire intent of the civil justice system - it has been bastardized into a system that deals out so-called "punative" damages based on the emotional response of a majority of jurists.

My argument is that this system needs changing - not that people shouldn't be allowed to sue. In criminal court, one is innocent until proven guilty beyond a reasonable doubt. I'd like to see the same WRT any kind of punitive damages in any civil case.

[Fraulein]

Thank you for your concern. Unfortunately, my father passed away about 6 weeks after his diagnosis (just last month). He passed away without the family knowing specific answers: what kind of cancer it was, where it traveled from, where the other cancers were, and so on. No real answers about the distended abdomen, and a host of other things. He was terminal so off to the hospice he went, with the insurance company refusing any and all other tests. And, yes, his neurologist (as well as 2 other hospital doctors) really did say to me, "Well, he is going to die anyway." No joke! I was flabbergasted.

[The Irishman]

With a child you cannot prove that they have lost wages unless they are really disabled.

If you have been told this, you are the victim of very poor legal advice. Estimates of future lost wages are made all the time in civil suits.

. Her IQ is 90 (low average). (Her brother is over 130, and I think her identical twin sister will be even higher.) An IQ of 90 means that she is not "retarded"

IQ tests at the age of your daughter (7) are not very reliable. That may be part of your difficulty in making your case against the physician.

They just can't prove what her potential is. She has severe speech problems. The left side of her body is weaker than her right side. Some of her reflexes are not normal. She has motor planning problems, so she can't do finger plays, dance complicated moves, etc.

These problems may generate rehab expenses and are thus economic damages. The Bush proposal would not limit them in any way. These could be awarded in addition to punitive damages and any non-economic damages she would get.

. The lawyer can only take 1/3 of the amount of the damages as their fee, and this would be under $100,000.

Not necessarily. His 1/3 would be determined by the total damages awarded (non-economic+economic+punitive). The only part of this limited to $250,000 by the Bush plan is the non-economic part.

The cost for taking the medical malpractice lawsuit to trial would be around $100,000.

The cost of filing is way less than this. A full trial might cost that much but filing would be a small fraction of $100,000. Your legal advice again appears to be deficient.

I'm in California where is law is already is in affect

Are you sure that punitive damages are limited by the California law? I thought only the non-economic ones were limited to $250,000 but I could be wrong. If there is a limit, do you know what it is? Additionally, any limit on them would presumably be in addition to any limit on non-economic damages. BTW, punitive damages are not paid by the insurance company but by the defendant himself.

Regards, and I hope this is of some help to you.

[The Irishman]

Bump to your entire series of replies.

Regards.

[top of the world ma]

I heartily disagree with your assertion that civil attorneys are accessories to theft in civil cases. During the voir dire process attorneys on both sides attempt to 'stack' the jury with people whom they perceive might be biased in favor of their client. Criminal attorneys do the same. That does not make them accessories to crimes their clients have been charged with. That's the way the adversarial system works. I can offer no suggestions on how to change it.

Serving on a civil jury, I would never award a plaintiff money with lung cancer for smoking cigarettes. That connection has long been established and he/she who smokes assumes the risk. Nor would I award anyone *any* money who claimed to have become obese by eating fast food. That's prepostrous! Again, that's an assumed risk on the part of the person who consumes fast food.

I still maintain my assertion that capping *punitive* damages at $250,000 against a negligent doctor is merely a slap on the wrist. That's no incentive for a physician to "clean up his act." It simply gets him off the hook to go out and do it again to someone else. My issue began with *punitive* damages and will end there as well. I've exhausted all my arguments and expected to change no minds. My thanks to the posters who engaged me with civil conversation rather than resorting to the tatic of "shooting the messenger."

[luckystarmom]

My daughter had a neuropsych eval done by a neuro psychologist at Oakland Children's Hospital. He's also a professor at Berkeley. He's the one that said he can't prove if she will go to college or not. She's just too young right now. You are definitely correct that IQ test are inaccurate at her age (5 at the time). Unfortunately, the statute of limitations is quickly running out. We still have a little over a year (when she is 8). That is definitely one of the problems with the case.

Any medical or rehab expenses are definitely not limited in California, unfortunately I don't think a lawyer gets that money. It would be greatly beneficial to my daughter.

Lost wages are also not limited in California.

We are still looking for a lawyer. Our first lawyer quit practice and moved to Texas. The second lawyer didn't want to take on the risks of the case. There's problems with proving when she actually got the brain damage. One neurologist says one thing, and the other says another. They all agree she had poor care, but they don't agree that it caused the damage. I think the neurologist that says her illness did not cause her damage is covering for his buddy who did cause the damage. Anyway, it's tricky.

Hopefully, we'll find a lawyer to take her case. I would love for it to go to trial. Even $50,000 would be of great help to us. I would really like to get medical and rehab expenses covered. We could really get her lots of help then.